Don’t Make Your Waiver Too Narrow!

Doyice Cotten

Waivers fail for many reasons, but the most common reason for failure is that they are poorly written. Often ambiguity is the major culprit, but in a recent California case one might conclude the waiver failed because it was NOT ambiguous. In fact it was too narrowly written.

Raffi Huverserian and his son Ari rented scuba diving equipment from Catalina Scuba Luv on March 30, 2005 (Huverserian v. Catalina Scuba Luv, Inc., 2010 Cal. App. LEXIS 750). Raffi Huverserian executed an equipment rental agreement which included the exculpatory language at issue in this case. The Huverserians took the dive equipment to Casino Point Dive Park in Avalon and entered the water. Raffi Huverserian ran out of air at a depth of 60 feet. He made a controlled ascent by breathing with his son, but went into cardiac arrest on the beach. Although he was resuscitated in Avalon, he died the next day at UCLA Medical Center.

The exculpatory language on which respondent’s defense is based is on a form rental agreement. It is undisputed that it was drafted by or for respondent and that Raffi Huverserian signed it. The top portion of the page has spaces to identify the renter  and date of rental, together with a chart with boxes to check off the equipment rented and charges. Below the chart is a line in boldface, underlined, in a larger size font:

“Equipment rental agreement, liability release and assumption of risk of scuba & snorkel gear for boat dives or multiple day rentals”

Following this is text in unemphasized type:

“This agreement is entered into between Catalina Scuba Luv and rentor and is a release of the rentor[’]s rights to sue for injuries or deaths resulting from the rental and/or use of this equipment. Rentor expressly assumes all risks of skin and/or scuba diving related in any way to the rental and/or use of this equipment…. Rentor also understands that Catalina Scuba Luv and its employees, owners, officers, or agents shall not be held liable or responsible in any way for any injury, death or other damages to rentor or his/her family, heirs, or assigns which may occur as a result of the rental and/or  use of the equipment, or as a result of product defect, or the negligence of any party, including the released parties, whether passive or active. I have carefully read and understand the above agreement. By signing this agreement, I exempt and release Catalina Scuba Luv and all related entities as defined above, from all liability or responsibility whatsoever for personal injury, property damage, or wrongful death as a result of renting and/or using the equipment, however caused resulting but not limited to product liability or the negligence of the released parties. Rentor agrees that he/she will be charged for damaged or missing gear.”

Catalina does not dispute Huverserian’s claim that they did not use the equipment for either a boat dive or a multiple day rental, but claim they are protected by the language within the waiver. Huverserian argued that the boldface, underlined language expressly limits the following exculpatory language to persons who rent equipment from respondent for a boat dive or multiple day rentals. Since the Huverserians did not fall into either category, the language does not apply to this situation. Respondent contends the language of the release is intended to apply to all renters of scuba equipment.

California law holds that a written release may exculpate a tortfeasor from future negligence or misconduct. To be effective, such a release must be clear, unambiguous, and explicit in expressing the intent of the subscribing parties. The release need not achieve perfection. Exculpatory agreements in the recreational sports context do not implicate the public interest and therefore are not void as against public policy.  An ambiguity exists when a party can identify an alternative, semantically reasonable, candidate of meaning of a writing.

The court ruled that the language of the rental agreement is unambiguous. The exculpatory language releasing respondent from liability expressly is limited to “boat dives or multiple day rentals.” The rental here does not fall into either category, and therefore the exculpatory language is inapplicable and provides no defense upon which summary judgment may be based. To be enforced a waiver must clearly notify the signer of the effect of signing the agreement and this waiver did not meet this standard. The court ruling was for Huverserian.

Author’s Note: Waivers can protect service providers; however, it is vital that the waiver writer be very careful with the language throughout.  The waiver would have protected the provider here if the heading had read: Equipment rental agreement, liability release and assumption of risk.

Photo Credit: Thanks to Rivieramaya26. http://creativecommons.org/licenses/by-sa/2.0/